2004 P Cr (PLP)

The petitioner has filed the Constitution petition with the following prayers:-- "(a) To direct the respondents Nos. 1 to 6 not to harass and humiliate the family of in-laws of petitioner and not to lodge the false F.I. Rs. in order to pressurize the in laws of petitioner with ugly aim of handing over the petitioner to respondents Nos.7 to 13. (b) To restrain the respondents Nos.7 to 13 not held the Jirga regarding the commission of murder of petitioner, and this Honourable Court may be pleased in, furtherance to take the Bonds from respondents Nos.7 to 14 regarding the safety and security of petitioner and her husband. (c) To declare that the Jirga system is illegal, unlawful and against the canons of law of land same is the inhuman act of feudal lords and Sardars. (d) To grant any other equitable relief as deemed fit by this Honourable Court in circumstances of the case. (e) The costs of petition may be awarded."

2. The facts giving rise' to the present petition are that on 16-10-2003 the petitioner Mst. Shazia contracted marriage with Ahsan Ali of her free will after swearing such affidavit before Civil Judge and Judicial Magistrate Daharki. It is alleged that after hearing the news of her marriage, the respondent No.7 (father bf the petitioner) with the help of respondents 8 to 13, attached the house of the petitioner's father-in- law (respondent No. 14) to kill the petitioner alongwith her husband as her father (respondent 7) declared her Kari and her husband as Karo. Due to fear of death, the petitioner alongwith her husband escaped from the house of her husband situated at Raunti and went to Sukkur. Thereafter, the respondents 5 to 13 got the help of respondents 1 to 4 and raided the house of respondent 14 in order to harass and humiliate him, therefore the respondent 14 filed a Constitution petition before this Court bearing C.P. No.S-773 of 2003 (Abdul Ghafoor v. D.P.O. Ghotki and others) on 21-10-2003. On the said petition, the Court issued notices to the respondents. However, after receipt of the notices the respondent 14 registered a F. I.R. bearing No. 121 of 2003 under sections 11 and 16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 against her husband and others. On 29-10-2003, the respondents 1 to 4 appeared before this Court in the said petition. After hearing of the said petition, the respondent No.14 was arrested from outside the Court. Thereafter, the respondents 7 to 13 attacked the house of the petitioner situated at Shah Khalid Colony, Sukkur and tried to kill her and her husband, but they escaped from the back door of their house. The petitioner went to Darul Aman, Sukkur for protection but the administration of Darul Aman did not admit her without the authority of Court. Therefore, she approached the IIIrd Additional District and Sessions Judge, Sukkur and requested him for sending her to Darul Aman. On her request, the learned IIIrd Additional District and Sessions Judge, Sukkur sent her to Darul Aman. The police after investigation of the case in Crime No. 121 of 2003 released the respondent No. 14 and after release of respondent No. 14, the petitioner's husband Ahsan Ali filed a Constitution Petition No.D-160 of 2003 (Ahsan Ali v. Assistant Director Darul Aman and another) them Court called the petitioner from Darul Aman. Her statement was recorded and 'then she was allowed to go with her husband. Thereafter the respondents 1 to 6, at the behest of respondents 7 to 13, lodged false F.I.Rs. against her husband and father-in-law (the respondent No. 14) being Crimes Nos.4 of 2004 and 16 of 2004 at Police Station Daharki.

3. It is further alleged by the petitioner that on 25-10-2004, respondents 7 to 13 held a Jirga which was presided over by Abdul Rahrnan Chachan, the respondent No.

11. In the Jirga, the petitioner's father-in-law was called where respondent No. 11 threatened the father -in-law of the petitioner (respondent No. 14) to hand over them the petitioner without fail, else the respondents 7 to 13 would involve the respondent No.14 and his other family members in cases. Due to said pressure and threats, the respondent No. 14 agreed to the decision of the Jirga and promised to bring the petitioner before the Jirga as she was decided to be murdered being "Kari" and Rupees five lac were imposed upon her father-in-law on account of kidnapping the petitioner and solemnizing her Nikah with Ahsan Ali. She apprehends danger to her life at the hands of respondents Nos. 1 to 13, therefore, she has filed the petition with the above prayers.

4. The respondents were served with notices. The respondents 1, 2, 3, 4, 5, 6 and 9 are police officials. They filed their statements. They took the plea that they had not harassed the petitioner nor they would do so but the cases bearing Nos. 121 of 2003, 4 of 2004 and 16 of 2004 were registered against the respondent No. 14, Ahsan Ali, the husband of petitioner and others and the same are being investigated by the investigation team. The above respondents did not file any affidavit in support of their plea, except respondent 9.

5. The respondents 7, 8 and 10 filed their statements. They have stated that they did not make any request for holding a Jirga nor they intend to do so. They did not file any affidavit in support of their claim nor denied other allegations of the petitioner levelled against them.

6. The respondents 11 to 13 also filed their statements by stating that they did not hold any Jirga nor they intend to do so. They neither filed affidavit to support their statements nor denied other allegations made against them in the petition.

7. The respondent No.14 who is father-in-law of the petitioner, filed objections and counter-affidavit in which he admitted the facts mentioned in the petition and further added that in the Jirga he had accepted the decision, as a painful atmosphere was created.

8. I have heard the Advocate for the petitioner, respondents, A.A.-G. for the State, amicus curiae M/s Abdul Fatta Malik, Nizamuddin Baloch Advocates and perused the record of this case very carefully.

9. The learned Advocate for the petitioner has stated that the allegations made in the petition have not been controverted by any of the respondent through their affidavits, except respondent No.9, therefore, the averments in the petition are deemed to be accepted as true by the respondents. That the averments in the petition have been admitted by respondent No.14 in whose presence the Jirga was held and the decision was made; that the F.I.R. bearing No.121 of 2003 was lodged after the respondent 14 filed the Constitution petition and after the marriage of the petitioner with Ahsan Ali and that the subsequent F.I.Rs. were lodged in order to pressurize the respondent No.14 and his son Ahsan Ali to surrender the petitioner; that this is usual practice which is played by the Zamindars and feudal lords of the area to put pressure upon the parties to surrender before them and carry out their decisions according to their wishes; that the life of the petitioner is in danger, therefore, her life may be saved, otherwise the petitioner will be killed, like in several other similar types of cases where the girls have been murdered in cold bloodedly manner on the decisions of Jirgas. He has referred to the case of Mst. Shazia, in which she and her husband were killed in pursuance of decision of Jirga on which the Supreme Court- of Pakistan took suo motu action. He has further stated that the Jirga system is illegal; that the Jirgas are by itself "I" within the "I" that in Jirgas the powers of Legislature, judicial and executive, are exercised by declaring a valid marriage as illegal, by trying the girls in their absence and giving decisions by awarding the sentence of death, fine and compensation and then executing their decisions by getting the girls killed; that all these functions pertain to Legislature, Judiciary and Executive; that holding a Jirga, by itself is an offence which is punishable under various provisions of Pakistan Penal Code, such as, sections 107 to 120-A, 141, 143, 302, 339, 340, 349, 350, 351, 355, 362, 383, 503 and 511, P.P.C.; that the Jirga is valid in Tribal Areas as declared under Article 246 of the Constitution of Islamic Republic of Pakistan; that the respondents Nos.7 to 13 have declared the petitioner as "Kari" and she will be killed alongwith her husband as he has also been declared as "Kayo", though they had validly contracted marriage.

10. The learned Advocate for respondents Nos.7, 8 4,d 10 has stated that no Jirga was held; that the petitioner was not declared Kari; that the offences were committed by the respondent No.14, Ahsan Ali and others, therefore, the F.I.Rs. were lodged which are being investigated by the police. On the point of Jirga system he has stated that when justice is delayed by the Courts of law then the Jirgas can be held; that the judicial system has failed to deliver result, therefore, the system of Jirga being alternative remedy is developing which is the need of the people and the people seek the decisions of Jirgas which are quick, operative and binding upon' the people of the area. He has further stated that the law permits that the offences may be compounded, therefore, the people go to their headmen, Nekmards and Zamindars to get their disputes settled amicably outside the Court, therefore, the Jirga system has the blessing of law.

11. Learned Advocate for the respondents Nos. 11 to 13, against whom the allegation is that they being headmen of the area held a Jirga, has stated that the holding of the Jirga is not an illegal act as defined under section 43 of P.P:C. He admits that hundreds of Jirga have been held in various parts of our Province which are reported in the newspapers, that the Jirga are not violative of any provisions of law. He has categorized the Jirgas in two-types; firstly to decide the criminal matters and secondly the civil matters. He has emphasised that in criminal mattes the Jirgas are held to decide the cases of murder, theft, kidnapping, Karo Kari etc. whereas in civil matters, the Jirgas are being held to decide property disputes between the parties of the locality. He has further stated that the Jirgas are not held by the headmen, Nekmards or Zamindars of the area by themselves but they are held at the request of aggrieved party. He has further stated that Jirgas are held when the legal institutions have failed to perform their duties, therefore, the people prefer to approach the Jirgas in order to get their disputes resolved which is alternative remedy available to them where their disputes are resolved amicably and the decisions are accepted by the parties which are long lasting and help in maintaining peace and patronizing in the area and so also further, future litigation are stopped and bloodshed can be averted. He has further emphsised upon the cases with reference to the matters referred to the Jirgas by arguing that generally in criminal disputes the F.I.Rs, are lodged promptly but the Jirgas are held after 3/4 years when the cases of the parties are not decided by the Courts of law; that when the aggrieved party could not get justice from the authorities created under the law, then they have several options; one of such options is private revenge. In such a situation a chain of reaction starts resulting in multiple murders from both sides and the parties take law in their own hands but when they exhaunt their energies then they approach the Jirga. In such a situation it is better to go to Jirga than to adopt private revenge, therefore, the Jirgas are beneficial to the people. He has further stated that the purpose of criminal justice has come to an end, as the purpose of punishment is to reform, retribution and deterrence, but the same are not available in the punishment awarded by the authorities, therefore, he suggested that their should be reforms in criminal justice system but till those reforms are made the Jirga system is beneficial to the people. As regards the Jirgas of Karo Kari he has stated that the said Jirgas are illegal and such Jirgas are usually held when a girl marries against the wishes of her parents. In such Jirgas the girl is condemned unheard which is violative of human and religious rights as well as the law of the land because if a thing cannot be done directly then the same cannot be done indirectly. He has further stated that this type of Jirga should not be held because it violates many principles of law, therefore, the Legislature may be recommended to frame laws to abolish such Jirgas. As regards the proceedings of Jirgas he has stated that in Jirgas no statements are recorded but oral statements are heard or the matters are decided on special oath on Holy Qur'an; that they decide. the-matters and announce their verdicts either by fine or some sort of punishment or monitory compensation but in Jirgas of Karo Kari the punishment of murder is imposed which is against the provisions of law and in the Jirgas of Karo Kari they not only declare the valid marriage as unlawful and exercise the powers of judiciary by pronouncing their verdict and awarding punishment and then executing their verdict; that these are against the spirit of the Constitution which is based on trichotomy of powers. He has further stated that the murder eases are decided on Holy Qur'an or by commanding the concerned party to walk bare footed or, burned coals and thereafter by putting their feet in a pool of blood of goat and after that the matters are resolved; that there are several other methods in resolving disputes in the Jirgas. He has admitted that the people proceed towards Jirgas as they know that the decisions of Jirgas are executed because, if the people feel that in the Jirgas the decisions will not be executed, then no Jirga will be held. He has further stated that except Jirga of Karo Kari, other Jirgas are legal, as several offences of P.P.C. are compoundable and the cases can be compounded outside the 'Courts through intervention of Nekmards of the locality. On the merits of the petition he stated that there is a factual controversy, therefore, the same cannot be resolved in the present petition.

12. Mr. Abdul Fatah Malik, Advocate amicus curiae has given the history of Jirga by connecting it with Persian region and stated that "Jirga" was originated from that area. He has further emphsised that the Jirga is a Persian word which means "collection of people or gathering" and the Jirga came from Central Asia and Balochistan; that it was a customary law where the head of the tribe used to decide the criminal and civil disputes of their tribe. At the earlier stage the Province of Sindh was not influenced by Jirga but it started from the period of Miran-e-Sindh, Talpur rulers. During that period, the Courts were called Jirgas due to Balochi tradition because Talpurs are Baloch. He has further emphasised that during those days there was no menace of Karo Kari; that on "Kayo Kari" or "Siahkari" case was reported in that period or in, the period of Moen-jo-Daro where the might of the sword was the decision and was to be executed. The tribes adopted the said mode because they had not surrendered before the civilised society and during the period of Talpurs the Jirga system was introduced it, Sindh, and in Punjab, the Jirgas were introduced during the period of Ranjeet Singh which were called as "Kachehris" and till to date the Courts in Punjab are being called as Kachehris; that the Karo Kari started in Baloch Tribes; that the Jirga is a substitute of Court where no procedure of law is provided but the customary law and procedure is adopted. In the Jirga of Karo Kari, the victim girl is never heard and that the declaration of the girl as Kari by her father, husband or head of the family is sufficient to treat her as Kari and once that pronouncement comes then the girl is treated as Kari. In some parts of our country the girls are being treated as cattle s just like buffaloes and goats; that the girls have no rights in such tribes on the pattern of animals as the animals have no rights, therefore, the girl is not required to be heard in those matters. He has further stated that even in Jirgas the girls are given to other side as compensation or in lieu of fine; that it is a custom which is prevailing in some tribes; that the Articles 4, 6, 14, 7, 31, 37, 175 are violated in these Jirgas. He has referred to PLD 1983 Quetta page 52 and PLD 1995 SC

530. He has further stated that holding of Jirga is coming within the definition of abetment, conspiracy and several other penal provisions of P.P.C. He has further stated in the year 1972 even Sardari system was abolished through Martial Law Regulation No.

115. He has further stated that it has been reported in several newspapers that in Jirgas the police officials and high ranking officials of the administration are participating, such as Commissioners, D.I.Gs., D.Cs. S.S.Ps. that the police never tried to stop holding Jirga which by itself is an offence but on the contrary the agencies which are appointed to protect the law and book the offenders are themselves participating and patronizing the said offences by participating in the Jirgas. He has further stated that Jirga system should be abolished immediately which is prevailing only in few Districts of Sindh, such as Sukkur, Ghotki, Khairgur, Shikarpur, Larkana and Jaccobabad; that no Jirga should be allowed to be held, because it is against the spirit of the Constitution's trichotomy of powers.

13. Mr. Nizamuddin Baloch, Advocate amicus curiae has stated that the Jirgas are committing the offences which are punishable under sections 107 to 120-A of P.P.C. and other penal provisions; that in the Jirgas unlawful assembly is made which by itself is an offence because the purpose of the said assembly is unlawful and it is violative of the trichotomy of powers of the Constitution. He has further stated that the crime rate is 'high in spite of opening of Colleges -and Universities; therefore, concentration should be focused on to educate the people properly so that responsible and law abiding citizens should come out from the colleges and universities. He has given the reference of the case of Shaista Almani, which is being heard by a Division Bench of this Court at Karachi. He has also made a reference to the case of Mst. Shazia. She and her husband were murdered in pursuance of decision of a Jirga. On which the Supreme Court of Pakistan took the cognizance because the girl and her husband were killed as she was declared "Kari" and her husband as "Karo" in spite of the fact that they had contracted a valid marriage but against the wishes of parents of the girl; that the life of the petitioner is at stake, therefore, her life may be saved; that the Jirgas are illegal having no sanctity of law and if the powers of Jirgas are not controlled then the people will not get their matters decided by the competent Courts of law which by itself is a threat on the administration of criminal justice, Courts and functions of the State. He has further stated that the menace of Jirgas is flourishing day by day with the active participation and connivance of the executive authorities and the police, who are participating in such Jirgas therefore, this menace cannot be controlled without the support of executive authorities, as such, the executive authorities shall be compelled to help the Courts of law so that this problem can be solved. On the question of compounding the offences; he has stated that major offences cannot be compounded without the permission of the Court, therefore, before going for compromise, the parties are required, first, to obtain the permission from the Court and then they can compound the offences. He has further stated that no villagers has courage to defy the order, even of small Zamindars then what to talk of big Zamindars. He has further stated that holding of Jirga can be prevented with the help of police who are the custodian of law but they have failed to discharge their duties, therefore, through a writ of mandamus they may be compelled to perform their public duties to save the life of the petitioner.

14. The learned Additional Advocate-General has stated that it is one of the duties of the police officials to register the F.I.R. if a cognizable offence is made out from the information received by theta; that the Police Officers have registered the. F.I.Rs. and are investigating the same in accordance with law. He has further stated that the Jirgas are illegal and against the law. On the question of prevention of holding Jirgas he has stated the legal action can be taken by the police but unfortunately the police are not taking such actions, therefore, the police should be compelled to take such action and if such actions are taken by the police promptly then the holding of Jirga can be prevented.

15. I have given due consideration to the arguments, gone, through the material available on the record very carefully and find that on 16-10-2003 the petitioner and Ahsan Ali contracted marriage against the wishes of the parents of the petitioner, after swearing an affidavit before the Civil Judge and Judicial Magistrate Dharki.

16. The allegation of the petitioner is that when her father respondent No.7 received the news of her marriage, he with the help of respondents 7 to 13 attacked the house of her father-in-law respondents 14, and intended to kill her and her husband as her father declared her as Kari and her husband as Karo, therefore, she had left the house. She went to take protection in Darul Aman but she was informed to obtain an order from the Court. Therefore, she approached the IIIrd Additional Sessions Judge, Sukkur, who ordered her to be kept in the Darul Aman. It is further alleged that in the meantime her father-in-law respondent 14 filed a C.P. No.773 of 2003 before this Court against police officials and respondent 7 for protection and saving him from causing harassment, where the police officials appeared. Thereafter the respondent 7 filed F.I.R. No.121 of 2003 under sections 11 and 16, Offence of Zina (Enforcement of Hudood) Ordinance. The respondent 14 was arrested in the said F.I.R., but he was released during investigation as no case of abduction was proved. The petitioner further alleges that her husband had filed C.P. No.D-160 of 2003 against Assistant Director Darui Aman. She was produced before the Court, where her statement was recorded and the Court allowed her to go with her husband. Thereafter the respondent 7 with the help of other respondents filed two F.I.Rs. against her father-in-law and others to pressurize them to submit, before the respondents: She further alleges that respondents 7 to 13 held a Jirga where her father-in-law, respondent 14 was called. In the Jirga she was declared as Xari, impose a fine of Rupees 5 lacs against the respondent 14 and the respondent 14 was directed to produce her, before the Jirga where she will be murdered.

17. All the allegations have been supported by the affidavit of the petitioner and various documents such as copy of .order passed in C.P. No.773 of 2003, statement of D.P.O. filed in the said C.P., order passed .by the Court in C.P. No.D-160 of 2003, statement of the petitioner recorded by this Court in the said C. P. and copies of F. I.Rs. Nos. 121 of 2003, 4 of 2004 and 16 of 2004. The facts and allegations mentioned in the petition are also supported and corroborated by the affidavit of respondent 14, father-in-law of the petitioner. He categorically stated that the father of the petitioner declared the petitioner as Kari and the father of petitioner and respondents 7 to 13 tried to kill her and her husband. He also admitted that he accepted the decision of Jirga under pressure of respondents 1 to 13, as a painful atmosphere was created.

18. As against this, the private respondents did not controvert the allegations -of the petitioner by filing their statements or affidavits. They simply claimed that neither Jirga was held nor requested for.

19. The petitioner has levelled specific allegations against the private respondents, therefore, they were required to specifically deny the said allegations by filing comments or written statements supported by their affidavits. Except the holding of Jirga, no other allegations have been denied by any respondent. It is well-settled principle of law that if allegations made in the petition are not denied then they are presumed to be accepted as true. The police officials also did not specifically deny the allegations of the petitioner., Nevertheless, they filed their statements that they had not harassed the petitioner nor they will do so but they are conducting the investigation of F.I.Rs. registered at the police station. Except respondent No.9, the other respondents did not file any affidavit in support of their statements.

20. The above factual contentions made by the petitioner in this petition are supported by the affidavits of petitioner and respondent 14, therefore, the denial from the respondents should have also been made through their comments or written statements supported the counter -affidavits, but the same have not been filed in this case. It has been held in the case of Muhammad Shafiq v. Additional District Judge reported in 1990 CLC 1108 that respondent number 3 did not file any written statement, therefore, the factual averments contained in the writ petition, supported by an affidavit shall be deemed to be correct for the purpose of disposal of the petition. Even an additional counter affidavit filed without permission of the Court was not accepted in Constitution petition as observed by a Division Bench of this Court in a case of Ghulam Mustafa v. Mehran University of Engineering and Technology reported in 1986 CLC 1056. On the question of non -filing of counter affidavit by the respondent in the Constitution petition a Division Bench of this Court in a case of Muhammad Farooq v. Government of Sindh reported in 1986 CLC 408 and at page 1410 observed as under:-- "The respondent has not filed any counter-affidavit denying the averments made by the petitioner in the petition. As such the facts of the case as stated by the petitioner in the petition have Been admitted."

21. Furthermore, the allegations against Abdul Rehman Chachar respondent 11 is that he held the Jirga. His interest has been shown and proved from the record produced by the petitioner before the Court through the F. I. R. No. 121 of 2003 under sections 11 and 16 of Offence of Zina. (Enforcement of Hudood) Ordinance From the contents of F.I.R. it is clear that it was lodged at the behest of the respondent

11. Though-it has come on the record that the petitioner contracted marriage with Ahsan Alt on 16-10-2003, whereas the F.I.R. of abduction of the petitioner was lodged on 25-10-2003. The respondent 14 filed C.P. No.773 of 2003 after the incident in which it was alleged that respondent 7 and other respondents attacked the house of father-in-law of the petitioner and that her father had declared her Kari. The respondent 11 was so interested in the matter that he accompanied the respondent 7 to the accused of the F.I.R. of abduction where he met with them arid asked them to return the petitioner, as is clear from the contents of F.I.R. Even then, private respondents did not controvert such allegations by denying the same in their written statements or by filing their own affidavits. Thus, the factual aspect of the allegations of the petitioner has been proved for the purpose of the disposal of the petition.

22. As regards the Jirga system, the word "Jirga" is a Persian word which has been defined in Feroz-ul-Lughat Urdu Jamia Dictionary as under:--

23. Before I discuss the points involved in the matter, it will be advantageous to examine the point dealt with by various statutes directly or indirectly. Previously in the Code of Criminal Procedure 1898, trials before High Court and Courts of Session were conducted with the aid of jury and assessors. In those trials the Judge used to preside over the Court, whereas jury and assessors used to aid the Judge. In the trial by jury, the jury was the real tribunal and was aided by the Judge and in certain matters directed by the Judge. However, in a trial with the aid of assessors, Judge was the sole Tribunal and the Judge of law and facts. The responsibility of the decision was rested solely with him, though in the decision of the case he was expected to take into consideration the opinion of each assessor. The Jury was consisted of 9 members but not less than 5 members. The jurors were to be chosen from the penal summoned to act as such in such manner as the High Court might from time to time by rule direct. Under the Law Reforms Ordinance, 1972, Chapter XXIII of Cr.P.C, containing the abovementioned trials were emitted.

24. In the year 1901 Frontier Crimes Regulation (Regulation No.III of 1901) was promulgated in respect of following areas mentioned in the IIIrd Schedule: "(1) The Divisions of Quetta and Kalat. (2) The District of Lasbela. (3) Nasirabad Sub-Division of Jacobabad District. (4) The added areas of the Hazara District specified in the First Schedule to G. G. O. No. 1 of 1952. (5) The added areas Mardan District, specified in schedule "A" in G.G.O. No.VII of 1953. (6) The added areas of Hazara District, specified in the First Schedule to G.G.O. No.XIII of 1955. (7) The former excluded areas of upper tanaval and Baluch Areas of Dera Ghazi Khan specified in the Schedule to President Order No.III of 1961."

25. Some of the provisions are of general application and the remaining provisions are applicable only against Pathans and Balouchs or against such other classes as the Provincial Government may by Notification in the official Gazette declare to be subject thereto. Under the Regulation, council of elders is to be appointed. In relation to Quetta and Kalat Divisions and District Lasbella the council of 3 or more persons convened according to Pathan, Balouch or, other usage, as the Deputy Commissioner may in each case direct. The procedure referring the matter of the Council and the Elders is that where the Deputy Commissioner is satisfied from a police report or other information that a dispute exists which is likely to cause blood-feud or murder, or culpable homicide not amounting to murder or mischief or a breach of the peace, or in which either or any of the parties belongs to Frontier Tribe he may refer the dispute to a council of Elders and requiring the council to make a finding in the matter in the dispute after making such inquiry as may be necessary and after hearing the parties. The entire procedure of settling the dispute, awarding punishment and execution is mentioned in the said Regulation. But this 'Regulation was repelled in relation to its application to the Provincially Administrated Tribal Areas of Chitral, Malakand, Dir, Kamal, Swat, Malakand protected area vide Regulation No. 1 of 1973. Under section 3 of West Pakistan Criminal Law (Amendment) Act, 1963 the Frontier Crimes Regulation, 1901 was repealed in the following words:‑‑ "(1) The Frontier Crimes Regulation, 1901, shall stand repealed in such areas and from such date as this Act comes in force in those areas. (2) For the removal of doubts, it is hereby declared that the provision of section 4 of the West Pakistan General Clauses Act, 1956, shall apply on the repeal of the Frontier Crimes Regulation, 1901."

26. The Council of Elders, created under the Regulation, is commonly known as Jirga.

27. In the year 1963 West Pakistan Criminal Law (Amendment) Act VII of 1963 was promulgated under which tribunals were constituted. The President of the Tribunal was the Magistrate exercising powers of Additional District Magistrate or Sub‑Divisional Magistrate who was invested with powers under section 30 of the Cr.P.C. and 4 other persons to be appointed by the Magistrate from amongst the panel which was constituted by the Commissioner of the Division for each District. The said Tribunal was even authorized to decide the murder cases and other heinous cases, which were referred to them under the said Act. During enforcement of said Act the trial before the Tribunal was commonly known as Jirga trial. But this Act was also repealed in the year 1969 by Ordinance XLII of 1969.

28. In the year 1968 Criminal Law (Special Provisions) Ordinance II of 1968 and Civil Procedure (Special Provisions) Ordinance I of 1968 were promulgated. Under these Ordinances, the tribunals are created on the pattern of Criminal Law (Amendment) Act, 1963. The trials before the said Tribunals are also commonly known as "Jigra Trials". The said Ordinances are applicable in the following areas:‑‑ "(1) The Divisions of Quetta and Kalat. (2) The District of Lasbela. (3) Nasirabad Sub‑Division of Jacobabad District. (4) The added areas of the Hazara District specified in the First Schedule to the North‑West Frontier Province (Enlargement of the Area and Alternation of Boundary) Order, 1952 (G.G.O. No.1 of 1952). (5) The added areas Mardan District, specified in schedule "A" to the North‑West Frontier Province (Increase of Area and Alteration of Boundary) Order, 1953 (G.G.O., No.VII of 1953): (6) The added areas of Hazara District, specified in the First Schedule to the North‑West Frontier Province (Enlargement of the Area and Alternation of Boundary) Order, 1955 (G.G.O. No. 13 of 1955). (7) The former excluded areas of upper Tanawal and the Baluch Areas of Dera Ghazi Khan specified in the Schedule to the Excluded Areas (Cesser of Exclusion) (West Pakistan) Order, 1961 (P.O. No.3 of 1961)."

29. In the year 1975 the Provincially Administered Tribal Areas Criminal Law (Special Provisions) (Regulations No.1 of 1975) was promulgated. In the same year another Regulation dealing with Civil matters in the name of Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation No.II of 1975 was promulgated. Under these Regulations Tribunals are created on the pattern of abovementioned earlier laws.

30. In the year 1976 another Regulation IV of 1976 viz. Provincially Administered Tribal Areas Special Provisions (Amendment) Regulation, 1976 was promulgated under which word "Jirga" was added in Regulations Nos.1 and II of 1975. Under this Regulation, in section 2(1) and after clause I the following clause was inserted. "(cc) `Jirga' means a Jirga constituted under section 6."

31. From the above statutes it is clear that the trials of offences were/are being conducted through the aid of jury, assessors, council of elders, tribunals and Jirgas. All these trials had/have protection of law and validly constituted under abovementioned referred enactments.

32. In the Province of Sindh West Pakistan Criminal Law (Amendment) Act, 1963 was enacted under which the trials were conducted by the Tribunals which were commonly known as the "Jirgas"'. But the said Act has been repelled. The repeal of the Act shows that even the trials by Tribunals consisting of private members headed by a Magistrate have been abolished. Thus, it is manifest that the Legislature by repealing Act, 1963 clearly demonstrates that the trial of any case with the aid of private persons cannot be conducted. Therefore, after the repeat of the said Act, no trial with the aid of private persons were held in the Province of Sindh. If any such trial is held with the aid of the private persons then it will be illegal and unlawful trial which will be having no protection of law, and the orders cannot be executed but the orders will be void. After the repeal of Act, 1963, when no trials with the aid of private persons can be held, then how Jirgas constituted by private persons on their own can conduct the trial of any case and award any punishment and execute the decisions. On this ground alone the Jirga system or Jirga trial in the Province of Sindh can be held as unlawful and illegal which has no sanctity and protection of law.

33. All the advocates of the parties, A.A.‑G. and amicus curiae‑are unanimous that the Jirga in respect of Karo Kari is illegal. From the submissions of the learned counsel, it is clear that in such Jirgas a valid marriage contracted under the law of the land is being declared as illegal and unlawful on the ground that the girl had contracted the marriage without the permission of her parents. If the girl is sui juris, then she has a right under the law of the land and also under Islamic Law to contract marriage her own free will, with any person (except the persons prohibited by law of Injunction of Islam) or her choice. It is pertinent to point out that if a boy marries a girl of his choice without the permission of his parents then such marriage is not subject to any Jirga. This by itself shows that in Jirgas a different considerations are being shown in respect of above referred two marriages. This also shows a discriminate attitude and approach towards the girls. It is also pertinent to point out that in such Jirgas, the girls are never heard and decisions are given in their absence.

34. A valid piece of legislation can be repealed or amended by the Parliament only. No other authority is empowered to repeal or make any amendment in the law. No authority has power to make a lawful act as an unlawful. Under the Constitution, only superior Courts have been given powers to examine the law on the touchstone of the provisions of the Constitution and pass appropriate orders to the extent as provided by the Constitution. The Jirga system is not a creation of Constitution or law, therefore, Jirga is not a parliament, they cannot declare a valid marriage contracted under the provisions of relevant law as invalid or unlawful.

35. The Honourable Supreme Court of Pakistan in a recent decision delivered in Hafiz Abdul Waheed v. Asma Jehangir Appeal No.98 of 1997 and Muhammad Iqbal v. S.H.O. Police Station Batala Colony, Civil Appeal No.563 of 1997, decided on 19‑12‑2003, held that for contracting a marriage, the consent of parents is not essential if the parties are sui juris. The decision of Honourable Supreme Court of Pakistan is binding on all authorities. Therefore, a boy and a girl become C husband and wife through a valid marriage. They cannot be declared as Karo Kari during the substance of the said marriage. The said term is used for having illicit connections between a boy and a girl without a valid marriage. Thus, the persons participating in such a Jirga would expose themselves for taking appropriate action. Under Article 190 of the Constitution, it is the duty of the entire executive and judicial authorities throughout Pakistan to come in aid of the Supreme Court. The decision of the Honourable Supreme Court of Pakistan is to be protected, preserved and implemented by all concerned C because a duty is cast upon the police to act swiftly and to preserve the basic fabric of the society, Injunction of Islam, law of the land and decision of the Supreme Court of Pakistan. Thus, the decision of Jirga declaring a valid piece of law as unlawful amounts to legislation and usurping the powers of Parliament.

36. All the counsel have agreed that in Jirgas various procedures are adopted to hear the parties and then decisions are given in the shape of punishment, fine and compensation. Part VII of the Constitution deals with "The Judicature", Article 175 deals with "Establishment and jurisdiction of Courts". Which reads as under:‑‑ "(1) There shall be a Supreme Court of Pakistan a High Court for each Province and such other Courts as may be established by lave. (2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."

37. Generally speaking apart from the Supreme Court and High Court, there are two types of Courts: (1) Criminal Courts (2) Civil Courts. The Cr.P.C. governs the procedure of trial of Criminal Courts. Whereas the C.P.C. governs the procedure of trial of Civil Courts. The Courts created under any enactment of law are only authorized to deal with the mattes mentioned therein and the persons to be tried. No other authority is empowered to decide such disputes or punish any offenders. A perusal of Cr.P.C. reveals that it provides machinery for the punishment and prevention of offences against sustentative criminal law. The object of Cr.P.C. is to ensure that an accused person gets a full and fair trial alongwith certain well‑established and well understood lines that accord with notions of natural justice.

38. In Jirgas no specific‑procedure is followed. It is the whim and choice of the Jirga people to adopt any procedure even if it is detrimental to any party. Neither the principles of natural justice are followed nor well‑recognized rules of evidence are adhered to. They are free to pass a verdict on personal knowledge belief and hearsay. It is noticed that in Jirgas they only settle the disputes but do not do justice according to law. At the conclusion of proceedings, the decisions are announced in the shape of punishment, fine or compensation. All the above acts are the functions of the Courts of Law. No other authority or person has power to settle the disputes of the cases except by the Courts of law or other authorities created under the statute and punish any person: The functions, which are exclusively to be performed by the Courts of law, are being performed by the Jirgas thereby usurping the powers of the Courts. As such the Jirgas are parallel Judicial System which by themselves are unlawful and illegal, therefore; any law do not protect them. Furthermore no appeal is filed against the decisions of Jirgas are final which is also against the principle of natural justice.

39. The arguments that the judicial system has failed therefore, the people are going for alternate remedy in the shape of Jirgas is without any substance. It is pointed out that thousand offences have been committed which the Courts of law are trying. Only few cases are being referred to Jirgas which by itself does not show that the judicial system has failed. People have faith in the judicial system therefore, they are approaching the Courts of law daily by filing their civil suits and criminal cases. People are daily attending the Courts where their matters are being decided in accordance with law on the well‑settled judicial principles of law.

40. The arguments that some offences such as murder cases etc. are compoundable therefore, the said matters are compounded in the Jirgas as such the system has blessings of the Court and law. In this connection, it is pointed out that there are two types of offences, which are compoundable under section 345, Cr.P.C. The first category of offences, mentioned in section 345(1), Cr.P.C. is compoundable without the permission of the Court. For these offences, the parties are at liberty to enter a compromise without the permission of the Court. However, after compromise they have to submit an application before the Court for an appropriate order of acquittal of the accused as provided under section 345(6), Cr.P.C. As such in these cases, the final authority is the Court.

41. The second category of offences mentioned in section 345(2), Cr.P.C. is compoundable with the permission of the Court. For compounding a murder case, first Court's permission is required. After obtaining such permission, the parties may enter into compromise. The wisdom behind the permission to compromise an offence from the Court is that in serious cases before entering compromise the Court is to be taken into confidence. In such cases, the Court has to see various aspects and if the Court grants permission then the parties can enter into compromise. After obtaining such permission from the Court, then the parties may refer the matter to anybody for effecting a compromise between the parties. In such a situation, the said person will be having blessings of the Court and he will act as a representative of the Court in effecting the compromise between the parties. Even then, the said person will be having no power to decide the matter finally. The status of the settlement or the compromise effected by the said person will be just like recommendation to the Court. It is not binding up the Court. The Court may accept it or reject it. The parties then file the compromise application before the Court. Then the Court will examine the relevant provisions of law applicable in the case and again inquire from the legal heirs of the deceased. If some of the legal heirs of the deceased are minor(s), then that aspect will also be taken into consideration to safeguard the interest and rights of minors. The Court has also to take into consideration the provisions of sections 310 and 311, P.P C. and then pass final judgment. In these proceedings, the upper hand will be always that of the Court. It will be the Court, which will be final authority to decide compromise effected between the parties with or without help of third party.

42. If the matters are referred to a Jirga to settle the dispute or effect a compromise between the parties without the permission of the Court then such Jirga will not be having blessing or backing of the Court, therefore, their actions will not be protected by the law. It is further pointed out that even after conviction when the matter is pending before the Appellate and Revisional Court a compromise cannot be effected without the leave of the High Court, Sessions Court or the Appellate Court as the case may be as provided under sections 3.45(5) and (5A). Cr.P.C. Section 345(7). Cr.P.C. creates a specific bar that no offence shall be compounded except as provided by this section". Thus, no offence can be compromised except as provided under section 345, Cr.P.C.

43. In the Jirgas the mode of execution of the decisions is settled by them and is executed through their own men.

44. Recently in the similar type of case of Mst. Shazia the Honourable Supreme Court of Pakistan took suo motu action, being suo motu Case No.4 of 2003 with following heading:‑‑ "(Shot dead of a married couple, Muhammad Hassan and Mst. Shazia by firing squad in pursuance of the decision of a Jirga in Sanghar). "

45. In that matter under the direction of Honourable Supreme Court of Pakistan Sessions Judge Sanghar conducted the enquiry. The Honourable Supreme Court in the decision delivered on 1‑4‑2004 has referred the observations of learned Sessions Judge in the following manner: "While concluding the enquiry, the learned Sessions Judge came to the conclusion that in his view, it was under a deep conspiracy in between Khaskheli clan and the police, deceased Mst. Shazia and Muhammad Hassan Solangi were called at or around Sanghar by force or by powerful influence and the efforts were made to separate them, but possibly the spouse had decided either to live jointly or to accept death, and they did riot agree to the terms and conditions of the private decision makers whereby the execution has been carried out on the fateful day."

46. The police gave a contradictory finding to that of learned Sessions Judge but the Honourable Supreme Court has shown reservations to the findings arrived at by the police and observed as under:‑‑ "We feel it appropriate to refer the matter to the I.G.P. Sindh, who shall look into the matter personally in order to ascertain the individual liability of the concerned Police Officers about their involvement in the matter, in any manner, for non conducting the investigation/inquiry impartially. All the above Police Officers, present in the Court, frankly conceded that there had occurred serious lapses in the inquiries/ investigations on their part. They also admitted that till this time, no action of any sort has been taken against any of the Police Officers in this matter. Moreover, the manner in which this case has been handled from very beginning caste serious doubts in our mind which is to be dealt with‑ seriously with some concrete results. This exercise must be completed within one month after receipt of copy of this order. Final report whereof be forwarded to the Registrar of this Court immediately,"

47. One of the pillars of the Constitution is Executive. The Legislature through legislation created Executing Agencies to execute the verdicts of the Courts. Thus, the execution of the orders is the function of State agencies. The private persons have no authority to execute the decision of Jirgas nor the Jirgas have the authority to execute their own decisions through their own sources. If such decisions are carried out and executed by killing persons then the offence of F murder will be committed and they will be liable for taking action as per law. Thus, the execution of order of the Court and other authorities created under the law is the function of Executive Agencies but the Jirgas have also usurped the powers of the Executing Authorities which is not permissible under the Constitution or the law.

48. The Constitution is based on trichotomy of powers i.e. Legislature, Judiciary and Executive. Their powers and duties are enshrined in the Constitution. All these authorities of the State are functioning in accordance with provisions of the Constitution. In the Jirgas as mentioned above, the powers of Legislature, judiciary and Executive Authorities are being exercised. All the learned counsel are unanimous that Jirgas are against the trichotomy powers of the Constitution. It thus, appears that the Jirgas are undermining or attempting to undermine the provisions of the Constitution.

49. Apart from the above position, in Jirgas the assembly may be in the first instance, lawful, but the purpose for which they assemble is unlawful and then they conspire to commit some offences therefore, they expose themselves for action as provided under various and relevant provisions of P.P.C. The learned Advocate for the petitioner and amicus curiae have mentioned some of such provisions, depending upon the facts and circumstances of each Jirga. In such a situation, it is the public duty H of the police to act swiftly and the exercise their powers and perform their duties to curb the offences being committed or book the persons who committed the offences. If nobody comes forward to lodge the F.I.R. then the police on their own on behalf of the I can file such F.I.Rs. as are being filed in the cases of unlicensed arms and ammunition and Narcotic cases. It is also one of the public duties of the police to protect life of the citizens when complained to them. In the present case the petitioner complained to the police to protect her life and the life of her husband but when she could not get proper response and on the contrary the petitioner shown apprehension that she and her I family members are being harassed at the behest of other respondents, therefore, she has approached this Court to save her life and the life of her husband. A duty is cast upon the Court to save the life of the citizens.

50. Consequently, the official respondents are directed to provide due protection to the petitioner to save her life and the life of her husband by invoking the provisions of the Cr.P.C. relating to the prevention of offences or after commission of offences and by invoking the provisions of Police Order 2002 and other enabling provisions of laws.

51. It is pertinent to point out that under West Pakistan Criminal Law (Amendment) Act, 1963, trials, which were commonly known as Jirga trials, were permissible, but the 'said law has been repealed. As such the Jirga system is unlawful and illegal which is against the provisions of the Constitution and law of the land.

52. The police are duty bound to take appropriate action to prevent the holding of Jirgas within their jurisdiction. The press which have already played a commendable and positive role in this behalf is expected to continue to play the same role in this behalf by pin pointing the assemble of Jirgas, so that the police may act promptly, according to law and such information can be made available to the police through their own intelligence agencies.

53. In the end I must express my gratitude to all he learned advocates for the parties, A.A.‑G. and the amicus curiae for their valuable assistances provided to the Court in resolving this important question.

54. The petition is disposed of in the above terms. N.H.Q./S‑38/K Order accordingly.